Human Rights Groups to Challenge Special 301

On Tuesday July 20, a group of public interest organizations, represented by Sean Flynn, Associate Director of PIJIP, will file a complaint alleging that U.S. trade policy in the Obama Administration reduces access to medicines in low and middle income nations, and therefore violates international human rights obligations. The complaint will be filed with the UN Special Rapporteur on the Right to Health, Anand Grover. A press conference announcing the complaint will be held at the International AIDS Conference in Vienna.

A live press conference will take place at the Media Center at the International AIDS Conference 2010, Vienna, at 12:00 noon Vienna time.

Sean Flynn explained:

"Since its inception in 1988, the United States
Trade Representative's "Special 301" adjudication of foreign intellectual
property law standards has been used to promote policies restricting access to
affordable medications around the world. President-elect Obama released a
platform promising to "break the stranglehold that a few big drug and insurance
companies have on these life-saving drugs" and pledged support for "the rights
of sovereign nations to access quality-assured, low-cost generic medication to
meet their pressing public health needs." The 2009 and 2010 Special 301
reports, however, indicate that the Obama Administration has not yet
implemented this pledge. Although the 2010 Report shows some improvement, the
Obama Administration continues using Special 301 to pressure developing
countries to adopt escalating intellectual property rules that are not required
by any international agreement and that will negatively impact access to
medicines. This complaint will allege that the continuation of Special 301 attacks on policies promoting access to affordable medications abroad violates international
human rights obligations."

UN human rights officials
and bodies have repeatedly found that the globalization of intellectual
property rights can only be squared with human rights if countries are
permitted and encouraged to utilize the full scope of intellectual
property exceptions and limitations provided for in the TRIPS agreement to
promote access to medicines. This body of human rights
law was summarized by Special Rapporteur Paul Hunt as meaning that
"that no rich State should encourage a developing country to accept
intellectual property standards that do not take into account the
safeguards and flexibilities included under the TRIPS Agreement. In other
words, developed States should not encourage a developing country to
accept ‘TRIPS-plus' standards."

The complaint will allege that the United States continues to breach these
international human rights obligations by using its 'Special 301' program to
threaten trade sanctions against countries that do not agree to increase
intellectual property protections beyond those required by the WTO TRIPS
agreement. The 2009 and 2010 Special 301 Reports issued by the Obama
Administration press developing countries to limit compulsory licenses for
needed medicines (e.g. Thailand, Ecuador), restrict freedom to define the scope
of patentability (e.g. in India, Brazil and Philippines), implement
"linkage" between drug registration and assertions of patent
protection (e.g. Chile, Dominican Republic, Pakistan, Columbia), and adopt U.S.
or EU-style "data exclusivity" rules that create drug monopolies
independent of patents (in dozens of countries).

BACKGROUND ON ANAND GROVER

Anand
Grover, the current UN Special Rapporteur on right to health, was
appointed in 2008 by the United Nations Human Rights Council. He has been a
well-known long-time advocate on HIV and human rights. Mr. Grover
argued several cases in the Indian Supreme Court relating to the rights of people living
with HIV, including rights of sex workers and the first HIV case in India
relating to employment. Mr. Grover also served with the UNAIDS Reference Group on HIV and Human
Rights.

BACKGROUND ON SPECIAL 301

The US
Trade Act requires USTR prepare an annual report to Congress that lists
countries which "deny adequate or effective" protection of intellectual
property rights, or which discriminate against US companies that rely
on intellectual property protection. In preparing the report, USTR
must solicit input from "interested persons." In the past, most input
has come from companies or industry groups representing intellectual
property owners, resulting in annual "Special 301 Reports" that largely
reflect the industries' desire for ever-higher levels of intellectual
property protection. In 2010, USTR held its first ever open hearing as part of its process for preparing the report. This
led to far greater participation by health, consumer, and
digital right groups - hundreds of which submitted written comments to
USTR in February. All of the comments received by USTR for the 2010
Special 301 review are available online at regulations.gov. (When
prompted by the site to enter a Keyword, enter "ustr-2010-0003" to view
the comments.)